Rock v Henderson

[2021] NSWCA 155

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Rock v Henderson [2021] NSWCA 155

Hearing dates:

12 July 2021

Date of orders:

29 July 2021

Decision date:

29 July 2021

Before:

Bell P at [1];
Brereton JA at [4];
Wright J at [51].

Decision:

(1) Grant the applicant leave to appeal.

(2) Direct the appellant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.

(3) Allow the appeal.

(4) Set aside the orders made by the District Court on 10 December 2020 and, in lieu, order that the notice of motion filed on 22 September 2020 be dismissed with the applicant on that motion to pay the cost of the respondent to that motion.

(5) The respondent is to pay the applicant/appellant’s costs of the application for leave to appeal and the appeal.

Catchwords:

CIVIL PROCEDURE – Pleadings – Striking out –Appeal against striking out of Statement of Claim in full – Where quantum of damages claimed identical to value of real property subject to family law proceedings – Whether proceedings brought for an improper or collateral purpose and thus an abuse of process – No sufficient basis for finding of abuse – Whether District Court erred in striking out applicant’s statement of claim as defective in form – Whether reasonable causes of action – Statement of claim not so defective as to justify striking out

TORTS – Malicious prosecution – Damage – Where limitations on recoverability of costs in subject proceedings – Whether legal costs of defence and lost earnings are actionable damage

TORTS – Malicious prosecution – Elements – Whether malice and absence of reasonable or probable cause adequately particularised – Whether necessary to show that prosecutor prejudiced by false information – Whether Apprehend Domestic Violence Order proceedings capable of founding malicious prosecution claim

TORTS – Trespass to land – Damage – Whether distress to children of claimant actionable damage

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 9 Divs 1-2

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 99, 99A

Family Law Act 1975 (Cth), ss 75(2)(o), 79

Supreme Court Act 1970 (NSW), ss 101(2)(e)

Supreme Court Rules 1970 (NSW), r 17

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 42.34, 42.35

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83

Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14

Carson v Legal Services Commissioner [2000] NSWCA 308

Childs v Lewis (1924) 40 TLR 870

Clavel v Savage [2013] NSWSC 775

Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30

Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; [1938] HCA 2

Cooper v Mulcahy [2012] NSWSC 373

Cooper v Mulcahy [2013] NSWCA 160

Giller v Procopets (2008) 24 VR 1; (2008) 40 Fam LR 378; [2008] VSCA 236

Goldsmith v Sperrings Ltd [1977] 1 WLR 478; 2 All ER 566

Grizonic v Suttor [2008] NSWSC 914

Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247

HD v State of New South Wales [2016] NSWCA 85

Hickey, In the Marriage of (2003) 30 Fam LR 355; [2003] FamCA 395

Kennon, In the Marriage of  (1997) 22 Fam LR 1; 139 FLR 118; FLC ¶92-757; [1997] FamCA 27

Li v Deng (No 2) [2012] NSWSC 1245

Majory, A Debtor, Re; Ex parte The Debtor v F A Dumont Ltd [1955] Ch 600; 2 WLR 1035

Marsh, In the Marriage of (1993) 17 Fam LR 289; (1994) FLC ¶92-443; [1993] FamCA 57

Martin v Watson [1996] AC 74; [1995] 3 All ER 559

Massarani v Kriz [2020] NSWCA 252

McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361; [1995] NSWSC 67

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

Robinson v Balmain New Ferry Co Ltd [1910] AC 295

Sahade v Bischoff [2015] NSWCA 418

Savile v Roberts (1698) 1 LdRaym 374; 12 Mod Rep 208

Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552

Soare v Ashley [1955] VLR 438

State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320

State of New South Wales v Landini [2010] NSWCA 157

Valceski v Valceski (2007) 70 NSWLR 36; 36 Fam LR 620; 210 FLR 387; FLC ¶93-312; [2007] NSWSC 440

Victoria International Container Terminal Limited v Lunt [2021] HCA 11; (2021) 388 ALJR 376

Walton v McBride (1995) 36 NSWLR 440; [1995] NSWSC 17

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

H Luntz, AD Hambly & R Hayes, Torts: Cases and Commentary (2nd ed, 1985, Butterworths)

RP Balkin & JLR Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Darren Rock (Applicant)
Kim Henderson (First Respondent)

Representation:

Counsel:

R Rasmussen (Applicant)
AW Smith (Respondent)

Solicitors:

Swiftly Legal (Applicant)
SMB Law (Respondent)

File Number(s):

2021/449

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

10 December 2020

Before:

Robison DCJ

File Number(s):

2020/233086

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sued the respondent in the District Court for damages for malicious prosecution and trespass to land. The applicant and respondent were formerly husband and wife, and there are financial and children’s proceedings between them pending in the Family Court of Australia. The malicious prosecution claim arose out of an unsuccessful application for an Apprehended Domestic Violence Order (“ADVO”) brought by the respondent against the applicant, and the trespass claim from the respondent’s alleged entry onto the applicant’s property while he and the children – who the respondent was prohibited, by another ADVO, from approaching – were present. One of the respondent’s assets was $265,000 proceeds of sale of a property in Lilydale, Tasmania. In a pre-action letter of demand, the applicant quantified his claim for damages (for trespass and malicious prosecution) in the same sum of $265,000.

The respondent filed a Notice of Motion in the District Court seeking that the applicant’s Statement of Claim be struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28. That order was made by the primary judge, and the applicant applied for leave to appeal. The application for leave and the appeal were heard concurrently.

Held (Brereton JA and Wright J writing separately; Bell P agreeing), granting leave to appeal, allowing the appeal, setting aside the orders made by the District Court, and in lieu thereof dismissing the respondent’s Notice of Motion: [3] (Bell P), [48]-[50] (Brereton JA), [103], [121] (Wright J).

As to the form of the pleadings:

The Statement of Claim was clear and comprehensible, and pleaded the essential material facts: [10] (Brereton JA).

As to a reasonable cause of action for malicious prosecution:

Per Brereton JA: The claim for the applicant’s legal costs of defending the ADVO proceedings, which was not abandoned, and the claim for loss of earnings, are both actionable damage: [12]-[27].

McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Tort Reports ¶81-361; [1995] NSWSC 67; Childs v Lewis (1924) 40 TLR 870, considered; State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320, distinguished.

Per Wright J: While the legal costs claim was conceded at first instance, the loss of earnings claim is at least arguable: [109], [114].

Per Brereton JA and Wright J: Malice, lack of reasonable and probable cause, and all other elements were adequately particularised, and it was not necessary to plead that the prosecutor was prejudiced by false information provided by the respondent: [28]-[33] (Brereton JA), [104]-[108], [111]-[113], [115] (Wright J).

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30, distinguished.

It is at least not unarguable that applications for ADVOs are among the categories of civil proceedings which may found a claim for malicious prosecution: [34] (Brereton JA), [110] (Wright J).

HD v State of New South Wales [2016] NSWCA 85; Clavel v Savage [2013] NSWSC 775; Li v Deng (No 2) [2012] NSWSC 1245, applied.

As to a reasonable cause of action for trespass to land:

The only objection to this claim is that the allegation that the children were distressed was irrelevant. However, this was relevant to both the applicant’s own distress and exemplary damages, and in any event, if inapt, could not warrant striking out the entire claim: [35] (Brereton JA), [116]-[118] (Wright J).

As to an abuse of process:

Per Brereton JA: A claim for property adjustment in family law proceedings by one spouse may be offset by a claim for damages by the other. Doing so via separate proceedings in a different court is permissible and is not an abuse of process. While the quantum of the damages claimed by the applicant was no doubt not coincidental in view of the proceeds of sale of the Lilydale property, the applicant’s claim did not circumvent the family law proceedings: [36]-[43].

In the Marriage of Kennon (1997) 22 Fam LR 1; [1997] FamCA 27; In the Marriage of Marsh (1993) 17 Fam LR 289; [1993] FamCA 57, applied; Cooper v Mulcahy [2012] NSWSC 373; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236, considered.

Per Wright J: The correspondence between the Lilydale proceeds and the damages sought may not have been fortuitous, but there was insufficient evidence to establish a logical connection. In contrast, evidence from the applicant that he was aggrieved by the respondent’s conduct and thus brought the proceedings for the genuine purpose of seeking damages was unchallenged. That was his immediate purpose, and the existence of any other ulterior motives outside of it is immaterial. The primary judge thus erred in finding that the proceedings were commenced for an improper purpose, and that such a purpose amounted to an abuse of process: [74]-[98].

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, applied.

Per Bell P: Abuse of process is a serious finding which is not necessarily established by an ulterior motive. Further, fairness dictates that the alleged motive must be put to the claimant, yet presently this did not occur: [1]-[2].

Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247, considered.

Per Brereton JA and Wright J: The submission that an abuse of process finding was supportable because damages would not be substantial and would be out of all proportion to the interests at stake, at least for the trespass claim, invokes a principle of ‘disproportionality’ about which there is some controversy. It is further questionable whether there was in fact ‘disproportionality’ in the present case, and even if there was, other procedures relating to costs and the transfer of proceedings may be more appropriate solutions. Ultimately, however, it is unnecessary to resolve this issue, as the principle was not raised below and a Notice of Contention was not filed: [44]-[47] (Brereton JA), [99]-[102] (Wright J).

Massarani v Kriz [2020] NSWCA 252; Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897; Grizonic v Suttor [2008] NSWSC 914, considered.

Judgment

1. BELL P: The facts are set out in the reasons of Brereton JA and Wright J.  I agree with their Honours that the primary judge erred in striking out the applicant’s proceedings which, as Brereton JA has pointed out, brought a practical end to the proceedings even though the applicant could have theoretically sought to bring fresh proceedings.    The striking out of the applicant’s claim and the concomitant holding that it amounted to an abuse of process was not justified.

2. In Williams v Spautz (1992) 174 CLR 509 at 534, Sir Gerard Brennan said that “the pursuit of a legitimate remedy is not converted to an abuse of process by an unworthy and ulterior motive.” Even if it could be, such a finding should not be made unless that claim is squarely put to the person said to have engaged in an abuse of process and/or to be possessed of such an unworthy or ulterior motive. A finding of an abuse of process is a very serious matter, whether reached by inference (as appears to have occurred in the present case) or otherwise, and at the very least, before such a conclusion could be reached, fairness dictated that such a serious allegation needed to have been put to the applicant who had sworn an affidavit in the proceedings: Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 at [72]-[74], [83]. This did not occur.

3. I agree with the separate reasons of Brereton JA and Wright J for granting leave to appeal and upholding the appeal.

4. BRERETON JA: In the District Court, the applicant Darren Rock sued the respondent Kim Henderson for damages for malicious prosecution and for trespass to land. Mr Rock and Ms Henderson had formerly been married; they separated on or about 6 August 2017, and there are pending, in the Family Court of Australia, proceedings between them concerning financial matters and concerning the welfare of the two children of the marriage. The malicious prosecution claim was in respect of Ms Henderson having procured the institution of proceedings against Mr Rock for an apprehended domestic violence order (“ADVO”), which proceedings were terminated in his favour when they were dismissed on 14 June 2019. The trespass claim was in respect of Ms Henderson having on 16 July 2019 entered Mr Rock’s property, where the children – whom she was prohibited by a separate ADVO from approaching – resided with him.

5. On 22 September 2020, before filing any defence in the District Court proceedings, Ms Henderson filed a Notice of Motion, seeking, relevantly, that the claim “… be struck out, in full or in part, pursuant to UCPR 14.28 or otherwise.” The motion was heard and determined on 10 December 2020, when the District Court Judge made an order, relevantly, that “[t]he Statement of Claim filed in these proceedings by the plaintiff on 10 August 2020 is struck out in full, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).” Mr Rock applies to this Court for leave to appeal, and that application is before the Court for concurrent hearing of the appeal if leave is granted.

6. (NSW) Uniform Civil Procedure Rules 2005 (“UCPR”), r 14.28, provides:

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

7. Although primarily directed to defective pleadings, sub-rule (1)(c) makes clear that it is also enlivened by an abuse of process, and in that respect the rule overlaps the provisions for summary dismissal in UCPR, r 13.4.

8. The primary judge’s dispositive reasoning appears to have invoked both aspects of r 14.28 (the form of the pleading, and abuse of process), and was to the following effect:

1. the Statement of Claim was defective as a pleading. It was “bad in form” for noncompliance with the requirement of the rules of court “to state the facts, not conclusions or evidence”, is “somewhat discursive and a little disjointed here and there”, containing “a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly of a personal nature”, and “frankly would be very difficult for a defendant to properly plead to”; [1] and

2. there was “an irresistible inference” that the proceedings had been brought for the improper collateral purpose of circumventing the family law proceedings, particularly given that the claim for damages had originally been quantified, in a pre-action letter of demand, in sums totalling $265,000, an amount which was identical to the proceeds of sale of a property in Lilydale, Tasmania, which Ms Henderson had received and which was a subject of the family law proceedings. The claim was therefore an abuse of process, which the Court should be astute to prevent. [2]

   1. Rock v Henderson (District Court (NSW), 10 December 2020, Robison DCJ) at 14-15 (“Primary judgment”).

   2. Primary judgment at 15.

9. It is not easy to discern from his Honour’s judgment the specific defects in the pleadings which concerned him, nor the improper collateral purpose, beyond that it was to “circumvent” the family law proceedings. Mr AW Smith of counsel, who appeared for the respondent before us (but did not appear at first instance), realistically and responsibly adopted the approach of identifying for this Court the defects which he sought to sustain. At least so far as concerns the pleading points, it is convenient to proceed by addressing the suggested defects which he pressed.

The form of the pleading

10. As a pleading, the Statement of Claim is clear and comprehensible. It pleads the essential material facts. Thus, in respect of malicious prosecution, it pleads that the defendant procured the institution of the ADVO proceedings (at [3]); facts to establish malice and lack of probable cause (at [4]-[12]), including (at [5]) facts that falsify her claim the Mr Rock engaged in a course of threatening conduct, (at [6]) that her claim to be fearful of him was false, and (at [7]) that the statements made to procure institution of the proceedings were false in those respects; termination of the proceedings in favour of the plaintiff (at [13]), and facts to establish damage (at [14]-[19]), including exemplary damages (at [20]). As to trespass, it pleads the plaintiff’s entitlement to the property (strictly, it should plead possession, not ownership, but this point was not taken) (at [21]); entry by the defendant without consent (at [22]), and facts going to exemplary damages – including that the entry was intentional (at [23]), and knowledge and materialisation of the likely consequences (at [24]-[25]). It must be said that it is not at all apparent why there would be the slightest difficulty for the defendant in pleading to the Statement of Claim. It is true that the particulars included in the pleading include evidentiary matters, but the pleading itself is orthodox in setting out material facts. There are, as his Honour commented, some personal matters referred to in the particulars, but the nature of the case is such that personal matters are relevant.

The malicious prosecution claim

11. In respect of the malicious prosecution claim, it was suggested, in substance, that (a) the damage pleaded was not actionable damage in a malicious prosecution suit; (b) a number of allegations relevant to malice and lack of reasonable and probable cause were inadequately particularised; and (c) the claim did not include a necessary allegation that the judgment of the police officer who instituted the ADVO proceeding was prejudiced by reason of false information provided to police by Ms Henderson.

No actionable damage pleaded?

12. In the Statement of Claim, Mr Rock claimed, by way of damages for malicious prosecution, his legal costs of defending the ADVO proceedings ($28,345), lost earnings attributable to the time he was required to attend court, to instruct his lawyers, and to review documents ($10,500), damages for “hurt feelings, distress and mounting anger”, and exemplary damages.

13. Traditionally, damages for malicious prosecution have been regarded as confined to: [3]

“1. … damage to a man’s fame, as if the matter whereof he is accused be scandalous … 2. … such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. Damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused.”

3. Savile v Roberts (1698) 1 LdRaym 374 at 378 (Holt CJ); 12 Mod Rep 208. See also Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544 (Rich, Dixon, Evatt and McTiernan JJ); [1938] HCA 2; Soare v Ashley [1955] VLR 438 at 440 (Herring CJ).

14. However, once damage under any of those three heads is proved, the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained. [4] Consequential economic loss is recoverable if not too remote, [5] as are damages for mental distress (as where occasioned by a serious criminal charge). [6] Aggravated and exemplary damages may be awarded.

    4. Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR(NSW) 552 at 558 (Jordan CJ; Halse Rogers J and Street J agreeing) (“Smith”); Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 386 (Dixon J); [1935] HCA 30 (“Brain”).

    5. H Luntz, AD Hambly & R Hayes, Torts: Cases and Commentary (2nd ed, 1985, Butterworths) at 882; RP Balkin & JLR Davis, Law of Torts, (5th ed, 2013, LexisNexis Butterworths) at 715.

    6. Smith at 558 (Jordan CJ; Halse Rogers J and Street J agreeing).

15. In written submissions before the District Court Judge, it was submitted for Ms Henderson that the claim for costs should be struck out, on the basis that in circumstances where the (NSW) Crimes (Domestic and Personal Violence) Act 2007 (“CDPV Act ”) made specific provision circumscribing the circumstances in which costs of proceedings under that Act were recoverable, those constraints could not be avoided by claiming the costs as damages. This submission invoked State of New South Wales v Cuthbertson (“Cuthbertson”). [7]

    7. (2018) 99 NSWLR 120 at 132-133 [61]-[68] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing); [2018] NSWCA 320.

16. Although the primary judge records that the claim to legal costs was, as a result of those submissions, abandoned, I can find nothing in the written or oral submissions to that effect, and the oral submissions on behalf of Mr Rock, as I read them, were to the contrary. [8] The CDPV Act makes provision in respect of the costs of proceedings for an ADVO to the effect that costs, limited to professional expenses and disbursements (including witnesses’ expenses), may be awarded to the applicant or the defendant, but not against:

1. an applicant who is a protected person, unless the application was frivolous or vexatious; or

2. an applicant who is a police officer, unless the applicant made the application knowing it contained matter that was false or misleading in a material particular, or has inexcusably deviated from the reasonable case management of the proceedings. [9]

   8. Tcpt, 10 December 2020, p 8(49)-10(09).

   9. CDPV Act, ss 99-99A.

17. In Cuthbertson – which was an appeal from a judgment in favour of Mr Cuthbertson, who had sued the State for wrongful arrest, false imprisonment, and assault/trespass to the person, but not for malicious prosecution – Beazley P (as her Excellency then was), with whom McColl JA, Basten JA, and Meagher and Payne JJA agreed, held that where the legislature has specifically turned its attention to the circumstances in which costs may be awarded and determined that no costs were to be awarded, it would be contrary to principle for those costs to be recovered “[as] a side wind” by way of damages in later and different proceedings, which would be the case if a party could pursue costs in civil proceedings that may or may not have been awarded, in whole or in part, in the criminal proceedings. [10] Her Honour said: [11]

    10. Cuthbertson at 133 [64]-[66] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).

    11. Cuthbertson at 132-133 [59]-[66] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).

“[59] In Anderson v Bowles (1951) 84 CLR 323; [1951] HCA 61, the High Court was concerned with the question whether costs incurred in seeking possession of premises were claimable as part of the damages to be awarded in an action to recover mesne profits. Pursuant to the relevant statute, there was no power to order costs in the possession proceedings. In dealing with the statutory provision which precluded the recovery of costs in possession proceedings, the plurality stated, at 323:

“This is a legislative declaration that the parties to proceedings for the recovery of possession or proceedings arising thereout shall not be liable to one another for the costs of those proceedings. In the face of this legislative declaration can costs be properly included in the damages or mesne profits? It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing. Accordingly it is not possible to recover as part of such damages the difference between party and party costs awarded to the plaintiff in the original litigation and the costs as between solicitor and client which he has incurred: Barnett v Eccles Corporation [(1900) 2 QB 423, at 428]. Further, if costs are expressly withheld by the court in the original proceeding none can be recovered in the action for damages brought by the plaintiff from whom they were so withheld: Loton v Devereux [(1832) 3 B & Ad 343; 110 ER 129], where Lord Tenterden CJ said: ‘In such a case the Court have jurisdiction to say definitely whether there shall or shall not be costs’ … See, further, Pritchet v Boevey [(1833) 1 C & M 775; 149 ER 612].” (Footnotes supplied)

[60] It should be noted that Pritchet v Boevey and Loton v Devereux,referred to in this passage, form part of the line of authority to which reference was made above, namely, that costs incurred in criminal proceedings for resist arrest are not recoverable in a civil action for false arrest, unless the court is satisfied that they were associated with obtaining release, were refused by the court in that action and were reasonable.

[61] Importantly, in Anderson v Bowles, their Honours stated, at 323-324, that where the legislature had determined that costs shall not be recoverable in a particular type of case:

“… it would be contrary to the principles which these cases exemplify if they were included in the damages and thus were made recoverable by a side wind. The case is not like Nowell v Roake [(1827) 7 B & C 404; 108 ER 774] depending upon a rule of the common law which simply ignored costs of legal proceedings of the character in question. It is one where the legislature, having considered whether in such proceedings costs should or should not be awarded, has expressed its conclusion in a definite provision. This should stand on the same footing as a judicial pronouncement upon the same question and as the rule that the difference between party and party costs judicially awarded and costs as between solicitor and client are not recoverable.” (Footnotes supplied)

[62] McTiernan J, in a separate judgment, was of the same view.

[63] In my opinion, the rationale for refusing costs in later civil proceedings in Anderson v Bowles is equally applicable to this case. This is so, notwithstanding that the earlier proceedings in the present case were criminal proceedings and, unlike in Anderson v Bowles where there was no power to award costs in the underlying possession proceedings, the District Court has power to award costs in the limited circumstances prescribed in the Crimes (Appeal and Review) Act, s 70.

[64] As the plurality in Anderson v Bowles pointed out, where the legislature has specifically turned its attention to the circumstances in which costs may be awarded and determined that no costs were to be awarded, it would be contrary to principle for those costs to be recovered “[as] a side wind” by way of damages in later and different proceedings.

[65] That would be the case here if a party could pursue costs in civil proceedings that may or may not have been awarded, in whole or in part, in the criminal proceedings. The circumstances in which costs may be awarded in criminal proceedings is significantly circumscribed. In summary, those circumstances are directed to impropriety or unreasonableness in investigating the charges, or in initiating or conducting the prosecution in the Local Court, including on the basis of bad faith. Those constraints evince a clear legislative purpose that costs may only be awarded in the circumstances for which the legislature has provided.

[66] In my opinion, a party cannot avoid those constraints by claiming damages for costs incurred in conducting a criminal appeal by claiming those costs in later civil proceedings. The clear legislative intention of s 70 is to limit the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made.”

18. In my opinion that does not apply, and was not intended to apply, in a suit for malicious prosecution. That is for a number of reasons.

19. First, in principle, it would seem extraordinary and counter-intuitive that a successful plaintiff in a malicious prosecution suit could not recover as damages the costs of defending the original proceedings, the incurring of which is the direct, natural, and probable consequence of the malicious bringing of those proceedings, and which is conventionally one of the heads of actionable damage required to found a claim for malicious prosecution.

20. Secondly, authority of this court holds that in a malicious prosecution suit such costs are recoverable as damages, even where the court in which the original proceedings were brought has no power to award costs. [12]

    12. Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171 at 176 (Herron CJ and Walsh J; Wallace J dissenting).

21. Thirdly, Beazley P expressly distinguished the position of a malicious prosecution suit: [13]

    13. Cuthbertson at 130 [47]-[49] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).

“[47] In this regard, proceedings for damages for the tort of wrongful arrest are to be distinguished from the damages that may be claimed for the tort of malicious prosecution where damages for the costs of defending the malicious prosecution are recognised as being recoverable: see Berry v British Transport Commission [1962] 1 QB 306. In that case, the only damage claimed in the plaintiff’s suit for malicious prosecution was the difference between the costs awarded to the plaintiff in the criminal proceedings and what she had in fact incurred. The court, as a preliminary issue, dealt with the question whether the statement of claim disclosed any actionable damage. It was held the statement of claim was not demurrable.

[48] In reaching that conclusion, Devlin LJ, at 322-323, explained the rationale for the award of the costs of a malicious prosecution in a later civil suit for damages. His Lordship stated that “those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong”, that different and additional wrong being the malicious prosecution, in which the defendant “ex hypothesi is abusing the legal process for his own malicious ends”. In a case of wrongful arrest, no additional wrong is committed. The costs are incurred in a prosecution which failed. However, there is no additional wrong in the bringing and maintenance of the prosecution as occurs in the case of a malicious prosecution. This of course is another way of saying that in the former, the necessary causal connection has been satisfied, whereas it has not been satisfied where the intentional tort sued upon is wrongful arrest.

[49] Berry v British Transport Commission was considered by the New South Wales Court of Appeal in Avenhouse v Hornsby Shire Council (1988) 44 NSWLR 1, where the costs of proceedings incurred in Land and Environment Court proceedings were claimed in a subsequent negligence claim against the Council. The Court referred to the observations of Devlin LJ, which I have referred to above, and added, at 35:

“The case might be seen to be different if the now plaintiff claimed that a separate tort was involved in instigating, assisting or causing the previous proceedings and sued for damages for that tort. Such torts could be malicious prosecution, false imprisonment or conspiracy …” (Emphasis added)

However, this observation was obiter and there was no consideration of the principle discussed above.”

22. Fourthly, Ms Henderson was not a party to the ADVO proceedings and was not amenable to a costs order, which could only have been sought against the police officer who prosecuted them. The circumstance that the conditions for obtaining a costs order against the police were not satisfied is no reason for not including defence costs in the damages which might be recoverable from Ms Henderson should she be found liable for their malicious prosecution.

23. As to the claim for lost earnings, it was submitted for Ms Henderson that they were not recoverable, as they did not fall within the traditional three categories, and were within the notion of “professional costs” which were irrecoverable pursuant to CDVP Act, ss 99 and 99A. I do not consider either of those propositions to be correct.

24. As to the first, the third traditional category is “[d]amage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused”. The phrase “as where he is forced to expend his money in necessary charges” is an example, not an exclusive description, of the damage to property that is recoverable. That it should not be read too strictly is illustrated by the judgment of Powell JA in McDonald v Coles Myer Ltd (t/as K-Mart Chatswood), describing the types of damage for which the plaintiff may be compensated in a malicious prosecution claim as follows (emphasis added): [14]

“The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff’s reputation, injury to his feelings that is for the indignity, humiliation and disgrace caused him by the fact of the charge being referred against him, pecuniary loss – as, for example, as a result of his being dismissed from his employment – and the expenses incurred in defending himself against the prosecution, or, where he has been awarded costs against the prosecutor, the amount by which the costs incurred exceeded the costs awarded. In addition, if the facts warrant it, an award of aggravated compensatory damages may be made.”

14. (1995) Aust Torts Reports ¶81-361 at 62,691 (Powell JA); [1995] NSWSC 67.

25. The reference to loss as a result of being dismissed is likely to be sourced in Childs v Lewis,^[15] which was an action for false imprisonment, but in which it was admitted that, had the action been one for malicious prosecution, the loss of the plaintiff’s director’s fees by reason of his forced resignation would have been recoverable. There is no difference in principle between the expenditure of funds on costs of a defence, and the loss of income which would otherwise have been earned, by reason of having to expend time on the defence. Indeed, lost income by reason of having to expend time in preparing and conducting a defence to a malicious prosecution is a more direct and proximate loss than lost income as a result of being forced to resign one’s employment.  

    15. (1924) 40 TLR 870.

26. As to the second, time expended by a party personally in research and giving instructions and attending court, other than to give evidence as a witness, is not recoverable as costs. [16]

    16. Cachia v Hanes (1994) 179 CLR 403 at 410, 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); [1994] HCA 14; Walton v McBride (1995) 36 NSWLR 440 at 453 (Kirby P); [1995] NSWSC 17.

27. It follows that the Statement of Claim did not unarguably fail to plead a claim for damages of a kind that are actionable in a malicious prosecution suit.

Insufficient particularisation of serious allegations?

28. The respondent submitted that the allegations (at [6]) that ‘[i]n her Written Statement, the [respondent] alleged that she was fearful of the [applicant] in circumstances where she harboured no such fears’ and (at [9]) that the real reason for the respondent seeking the issue of an ADVO against the applicant was ‘as a means of retribution for the embarrassment and humiliation he had caused her’, were not adequately particularised and were liable to be struck out.

29. The particulars furnished pursuant to [6] were that the respondent “attended the home of [the applicant] on two occasions: once after the return date of the Proceedings, and again on 16 July 2019.” The respondent submitted that both of those events post-dated the execution of the witness statement, which was alleged to have been made on 25 September 2018.

30. The relevant pleaded allegation of fact in [6] is that Ms Henderson did not have a condition of mind that she claimed to have: that is, that she was not fearful, as she claimed to be; in other words, the allegation is of a negative. The particulars provided are of conduct said to be inconsistent with the claimed state of mind. It would be open to drawn an inference that she was not fearful from that conduct, if it were proved. That it occurred after the witness statement was made does not detract from this, as it might be inferred that her claimed fear of Mr Rock, if genuine, would not have evaporated by the time of those events. There is no evidence that further particulars were ever requested, and it is not apparent how further particulars could be provided.

31. The allegation pleaded in [9], that the real reason for the respondent seeking an ADVO was retribution, is an allegation of an extraneous motive. Effectively, it is itself a particular of malice. The underlying facts grounding the allegation are pleaded in [2]. Again, there is no evidence that further particulars were ever requested, and it is not apparent how further particulars could be provided of an allegation that that was Ms Henderson’s true motive.

Absence of pleading that police informant was “prejudiced”?

32. The respondent’s written submissions argued that the Statement of Claim failed to plead an essential element of the cause of action, namely that the judgment of that police officer was prejudiced by reason of the false information provided to them by the respondent. It was submitted that where the police officer who took a statement from the respondent had a discretion as to whether to seek the issue of an ADVO, it was an essential element of the cause of action for malicious prosecution to establish that the judgment of that police officer was prejudiced by reason of the false information provided to them by the respondent. For this proposition, the respondent cited Brain,[17] and Sahade v Bischoff. [18] However, those cases do not hold that there is any such essential element of the cause of action. The relevant passage in the judgment of Dixon J in Brain is as follows (citations omitted): [19]

“It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible … The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.”

17. At 379 (Dixon J).

18. [2015] NSWCA 418 at [114] (Gleeson JA; Basten JA and Beech-Jones J agreeing).

19. Brain at 379 (Dixon J); see also Sahade v Bischoff [2015] NSWCA 418 at [114] (Gleeson JA; Basten JA and Beech-Jones J agreeing); Martin v Watson [1996] AC 74 at 81 (Lord Keith of Kinkel; Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead and Lord Steyn agreeing); [1995] 3 All ER 559.

33. That passage states that an informant who honestly places information before a proper authority does not incur liability if the authority institutes a prosecution as the result of an independent discretion; but may do so if he or she misleads or deceives the prosecutor to do so, even though the actual prosecutor is innocent. It does not mean that a plaintiff must plead that the prosecutor’s mind was prejudiced, nor that the proceedings were instituted because of that prejudice. In any event, the Statement of Claim pleads that Ms Henderson procured the institution of the proceedings (at [3]), and that she knowingly made false statements to [the police informant] when she procured the institution of the proceedings, in particular false claims of a course of threatening conduct and that she was fearful of the plaintiff (at [7]). It is not necessary to plead in addition that the police informant was thereby prejudiced.

Are ADVO proceedings capable of founding a claim of malicious prosecution?

34. In supplementary submissions served on the eve of the hearing, it was submitted that this Court should hold that an action for malicious prosecution does not lie in respect of an unsuccessful application for an ADVO. While it is uncontroversial that such an application is a civil and not a criminal proceeding, that is not the sole test: it is well-established that some categories of civil proceedings may found a claim for malicious prosecution. A number of cases have held, or at least assumed, that an application for an ADVO is in that class. [20] In that context, it cannot be said that the contrary proposition is so clearly correct that the proceedings are so clearly untenable as to be an abuse of process. Moreover, the point was not taken at first instance, nor relied upon by the primary, and would require a Notice of Contention.

    20. HD v State of New South Wales [2016] NSWCA 85 at [69] (Gleeson JA; Leeming JA and Emmett AJA agreeing); Clavel v Savage [2013] NSWSC 775 at [43]-[45] (Rothman J) (this case concerned Apprehended Violence Orders, not ADVOs, but the distinction is not material for present purposes); Li v Deng (No 2) [2012] NSWSC 1245 at [169] (Ball J).

The trespass claim

35. In respect of the trespass claim, the only objection to the pleading articulated before us was in respect of the allegation (in [25]) that the children were distressed as a result of the defendant’s entry on the property. It was submitted that this was irrelevant in circumstances where the children were not parties to the proceeding. However, the context was that the children were residing with Mr Rock, in his care; there was an ADVO prohibiting Ms Henderson from approaching them; and distress to the children would likely cause distress to the parent who was caring for them. Further, as I would read the pleading in context, those matters are relied upon for the claim for exemplary damages. In any event, even if the allegation in [25] were inapt, there is still a good pleading of a cause of action in trespass, so that such a defect could not have warranted the striking out of the claim as whole.

Abuse of process?

36. As to abuse of process, the respondent did not seek to sustain the conclusion that the proceedings were an abuse of process by reason of seeking to circumvent the family law proceedings. However, the respondent submits that the amount claimed in the letter of demand which preceded the claim was perversely disproportionate to the likely result to be obtained, and that the judge was entitled to take that disproportionate claim into account and to draw the inference that the applicant, having determined that he wished to seek to recover the proceeds of sale of the Lilydale property, thereafter went about justifying that claim by devising a claim for damages in that amount. Further, it was submitted that, although it was not expressly relied on by the primary judge, his Honour was entitled to infer that a claim for damages of that magnitude would inform or impact any negotiations with respect to resolution of the family law proceedings, and that that was the true purpose of the claim, which would be an improper collateral purpose.

Collateral abuse of process

37. The species of abuse of process in question here is that where the proceedings are used as a ‘stalking horse’, to achieve an outcome which is outside the result for which the law provides. There will not be a collateral abuse of process where the plaintiff institutes and maintains the proceedings with the intention of prosecuting them for the purpose of obtaining the remedy claimed in them, even if there are collateral or ulterior motives and benefits. [21] If a plaintiff sues to redress a genuine grievance, no object which the plaintiff may seek to obtain in the proceedings can be condemned as a collateral advantage, and to that extent improper, if it is reasonably related to the provision of redress for that grievance. If a plaintiff with a genuine cause of action, which the plaintiff would wish to pursue in any event, can be shown also to have an ulterior purpose as a by-product of the litigation, the plaintiff cannot be debarred from proceeding. On the other hand, a plaintiff’s pursuit of an ulterior purpose unrelated to the subject matter of the litigation which, but for the ulterior purpose, the plaintiff would not have begun, is an abuse of process. [22]

    21. Williams v Spautz (1992) 174 CLR 509 at 520-521, 526-527, 530 (Mason CJ, Dawson, Toohey and McHugh JJ), 535-537 (Brennan J); [1992] HCA 34 (“Spautz”).

    22. Carson v Legal Services Commissioner [2000] NSWCA 308 at [104]-[110] (Sheller JA; Giles JA agreeing), applying Spautz at 522, 524-527 (Mason CJ, Dawson, Toohey and McHugh JJ), 535-536 (Brennan J), and citing Re Majory, A Debtor; Ex parte The Debtor v F A Dumont Ltd [1955] Ch 600 at 623-624 (Lord Evershed MR for Lord Evershed MR, Jenkins and Romer LJJ); 2 WLR 1035, and further citing Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503, 537 (Bridge LJ; Scarman LJ agreeing); 2 All ER 566.

38. Although there was little evidence of the issues in the family law proceedings, it appears that there were financial as well as children’s proceedings. Proceedings for adjustment of property interests under (CTH) Family Law Act 1975 (“Family Law Act”), s 79, put in issue the whole of the property of both parties. [23] However, while a cause of action which one party has is within the definition of property, it is well established that a claim for damages may be brought by one party to the marriage against the other in parallel with proceedings for property adjustment, and that the result may be that a party receives both an order by way of property adjustment under s 79, and, in addition, an award of damages to be paid out of the other party’s share. In In the Marriage of Marsh (“Marsh”),[24] Coleman J heard concurrently a wife’s claim for property adjustment and her cross-vested claim for damages for assault. Having held that she was entitled to damages for assault, his Honour held that the award of damages should not be taken into account as a factor under s 75(2)(o) of the Family Law Act to reduce what would otherwise be the wife's entitlement to orders for property settlement. His Honour said: [25]

“There are really no other provisions of s 75(2) which do impact in this case to affect the proper division of the assets of the parties, with the possible [exception] of s 75(2)(o), which becomes relevant by virtue of the verdict for damages which I propose entering in favour of the applicant as against the respondent. I do not believe it legitimate to make that award and then take it into account under s 75(2)(o) to reduce what is otherwise properly the entitlement of the applicant. By the same token it is a debt which the respondent will have to reduce what he receives of the meagre matrimonial assets of the parties and it will, relative to those meagre funds, provide a substantial boost to what the applicant receives. Moreover, I cannot fail given the terms of s 79(2) of the Act to do what is just and equitable in an overall sense. Balancing all of these matters, and making an order for settlement of property which is overall just and equitable, the appropriate order is in my view that the proceeds of sale of the matrimonial home be divided between the parties in shares of 60% to the applicant and 40% to the respondent, the respondent from his 40% of the proceeds of the sale of the home, being obliged to pay to the applicant $7000 to satisfy the damages verdict against him.”

23. In the Marriage of Hickey (2003) 30 Fam LR 355 at 370 [40] (Nicholson CJ, Ellis and O’Ryan JJ); [2003] FamCA 395.

24. (1993) 17 Fam LR 289; (1994) FLC ¶92-443; [1993] FamCA 57.

25. Marsh at 297 (Coleman J).

39. That approach was endorsed by the Full Court in In the Marriage of Kennon (“Kennon”), [26] which varied orders made at first instance by increasing from $400,000 to $700,000 the amount payable to the wife by way of property settlement, but left on foot in addition to that a judgment in her favour for $43,000 damages for assault. The same approach has been recognised by the Victorian Court of Appeal in Giller v Procopets (“Giller”),[27] and by Macready AsJ in Cooper v Mulcahy (“Cooper”). [28]

    26. (1997) 22 Fam LR 1 at 37 (Fogarty and Lindenmayer JJ); 139 FLR 118; FLC ¶92-757; [1997] FamCA 27.

    27. (2008) 24 VR 1 at 67-68 [292]-[295] (Neave JA; Maxwell P agreeing); (2008) 40 Fam LR 378; [2008] VSCA 236.

    28. [2012] NSWSC 373 at [164] (Macready AsJ). Although this judgment was overturned on appeal, it was on grounds unrelated to this issue, on which the appeal did not cast doubt: Cooper v Mulcahy [2013] NSWCA 160.

40. Those cases illustrate that there is nothing inappropriate about one spouse bringing a claim for damages against the other in parallel with proceedings for property adjustment, and receiving a judgment on that claim, to be satisfied out of the other’s entitlement under s 79. That cannot depend on the accident of who is the applicant in the property adjustment proceedings. The necessary corollary is that a claim for property adjustment by one spouse against the other may be offset by a claim for damages by the other. As with any cross-claim, that may give the cross-claimant some leverage for negotiation. That does not make it improper.

41. It is true that the cases to which I have referred involved concurrent claims for property adjustment and damages in the same court. Giller and Cooper were de facto relationship cases, in which the state courts then had jurisdiction. Marsh and Kennon were determined before the demise of the cross-vesting scheme, insofar as it vested state jurisdiction in federal courts, and relied on the cross-vesting of state jurisdiction. In Kennon, Fogarty and Lindenmayer JJ referred to difficulties in claims for damages of domestic violence in the context of cross-vested proceedings in the Family Court, and clearly accepted that it was open to bring the damages claim concurrently in a state court: [29]

    29. Kennon at 9-10 (Fogarty and Lindenmayer JJ).

“More recently claims for damages for assault have been litigated in this court by using the cross-vesting scheme and attaching them to a property claim under s 79 of the Family Law Act: see for example, In the Marriage of Marsh(1993) 17 Fam LR 289; (1994) FLC 92–443.

We should add that at the present time the validity of the cross-vesting scheme, or at least the validity of the vesting of state powers in federal courts, is under consideration by the High Court. The discussion hereunder is, therefore, subject to the outcome in that appeal.

Where the action for damages is litigated in a state court that outcome would ordinarily have only limited relevance to a subsequent s 79 proceeding in this court between those parties. It may create an issue estoppel arising from the determination and the necessary components of that determination. It may also have an impact upon the property pool to be considered by this court in s 79 proceedings. Components of the damages awarded by the state court may be important in considering aspects of the s 79 claim: for example, if damages included components for loss or diminution of future earning capacity or ongoing physical or psychological injury.

The developing practice of including a claim for damages in family law proceedings via the cross-vesting scheme can have some advantages and is now occurring more frequently. They involve only the one proceeding instead of two and may be less expensive and quicker overall. However, this practice also creates difficulties and produces results which overall may not be satisfactory. It involves the simultaneous or virtually simultaneous hearing of two claims with different dynamics and which serve different purposes. It does not necessarily follow that this court will in all such cases consider it appropriate to adjudicate the cross-vested issue. It may consider that it is more appropriate to transfer the proceedings to a state court for determination.

In any event, before it can be heard in this court it is necessary for there to be a proceeding within the original jurisdiction of this court to which it is attached. Whilst in theory any claim under the Family Law Act may be sufficient, it seems to us likely that it could only be attached to a s 79 claim. It may be difficult to envisage a case where there would be a sufficiently relevant connection (aside from the identity of parties) between a common law action for damages and applications under the Family Law Act such as divorce, parenting orders, child support or even spousal maintenance. In those cases the relevant connection may be so tenuous that it would ordinarily be expected that the Family Court would decline to entertain it and would transfer it.

Even in relation to a s 79 claim, it does not follow that the Family Court is obliged to hear the cross-vested damages claim. Whilst in no way attempting to understate the impact of domestic violence and the importance of appropriate remedies, the fact is that in such a situation the s 79 claim should remain the major focus in this court because it is the area in which this court has direct jurisdiction and particular expertise.

Some procedural and evidentiary difficulties may arise where a damages claim and a s 79 claim, involving the same parties, proceed in this court at the same time. An initial decision would need to be made as to whether the proceedings should be heard together or separately. If they are heard together, difficulties may arise in distinguishing what is relevant under each claim. In particular, the parties themselves may not be able to draw that distinction and the s 79 claim could be submerged by what appears to the parties to be fault based issues which may overrun the quite distinct issues relevant under s 79. If the respondent to the common law claim is the applicant in the property claim, that person may suffer procedural unfairness if he or she is required to proceed first and is cross-examined about the assault claims before a prima facie case on that issue has been established. The procedures could be adjusted to meet this problem but that in itself may carry with it other disadvantages.

It may be possible to have one hearing but isolate the two claims, hear the assault and damages evidence first and then the s 79 evidence, and have one composite adjudication. This may be appropriate if both parties agree but there will be likely to be an overlap of relevance and evidence.

If the two claims are adjudicated in separate hearings, there would be little basis for these two hearings to take place in the Family Court and the appropriate course would be to transfer the damages claim to the state court. In any event, a split hearing in this court may have disadvantages. It would be likely to require separate judges because findings in the first proceeding on issues of fact and credit may lead one party to request that the s 79 claim be heard by another judge. There would be likely to be an overlap in relevance and evidence, and issues of estoppel may arise.”

42. In the light of those observations, a party could not be criticised for bringing the damages claim separately in a state court. It follows that it could not conceivably be an abuse of process to do so. Moreover, with the demise of the cross-vesting scheme, the foundation for concurrent proceedings in the Family Court depends on the accrued jurisdiction. [30] While it is one thing to assert that a claim for damages for assault in the nature of domestic violence during the marriage is part of the same “matter” as a claim for property adjustment, it is another to do so in respect of a claim for post-separation malicious prosecution or trespass to land, though the proposition may not be unarguable. In that context, it is all the more justifiable for the damages claim to be brought in the District Court.

    30. See Valceski v Valceski (2007) 70 NSWLR 36 at 48 [37] (Brereton J); 36 Fam LR 620; 210 FLR 387; FLC ¶93-312; [2007] NSWSC 440.

43. The initial demand for damages, in the context of claims for which the remedy is unliquidated damages, quantified in an amount which corresponds with the proceeds of the Lilydale property, was no doubt not coincidental, but, even assuming that the proceeds of the Lilydale property received by the respondent would remain exclusively hers as a result of the family law proceedings, there is nothing inappropriate about claiming damages against Ms Henderson on a parallel cause of action, payable out of whatever she might receive by way of matrimonial property settlement. Such a claim does not “circumvent” the family law proceedings.

Disproportionality?

44. In this Court, the respondent submitted that the finding of abuse of process was supportable on the alternative basis that, at least in the trespass claim, the damages would not be substantial, and that where the resources of the Court and the parties to be engaged to determine a claim are out of all proportion to the interests at stake, such ‘disproportionality can be properly regarded as a species of abuse of process’, justifying the dismissal or staying of the proceedings. Reliance was placed on Bleyer v Google Inc (“Bleyer”),[31] and Grizonic v Suttor (“Grizonic”). [32]

    31. (2014) 88 NSWLR 670 at 677 [38], 681 [62] (McCallum J); [2014] NSWSC 897.

    32. [2008] NSWSC 914 at [63]-[64] (Brereton J), cited with approval in Bleyer at 677 [37]-[39] (McCallum J).

45. There are of course costs consequences for bringing small claims in jurisdictions which they do not warrant. However, the proposition that a plaintiff may be denied a hearing merely because the claim is small and the costs of prosecuting (and more particularly, defending) it disproportionate, is a troubling one. The celebrated cause of Balmain New Ferry Co Ltd v Robertson [33] would never have got to trial, let alone to the Privy Council, if it were correct. Bleyer has not been without controversy, as its author McCallum JA herself has since noted in Massarani v Kriz: [34]

“The decision has met with some criticism [Smith v Lucht [2014] QDC 302, considered by me in Feldman v The Daily Beast Company LLC [2017] NSWSC 831 at [15]-[18]]. Where it has been considered by appellate courts, other Supreme Courts and the Federal Court, it has arisen in circumstances where it was unnecessary for the court to express a view as to its correctness [Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [44] (Macfarlan JA), [55] (Leeming JA), [56] (Adamson J); Lazarus v Azize [2015] ACTSC 344 at [23] (Mossop AsJ); Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296 at [130]-[143] (Ward JA, Meagher and Payne JJA agreeing at [1] and [145]); Watney v Kencian [2017] QCA 116 at [61] (Applegarth J, Morrison and McMurdo JJA agreeing at [1] and [2]); GG Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664 at [52] (Markovic J); Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246 at [40] (McCallum J), cf at [5] (Basten JA); Armstrong v McIntosh (No 2) [2019] WASC 379 at [115] (Le Miere J); Fox v Channel Seven Adelaide Pty Ltd (No 2) [2020] SASC 180 at [11]-[21] (Stanley J); and see the helpful review of the development of the principle in the decision of Gibson DCJ in Khalil v Nationwide News Pty Ltd (No 2) [2018] NSWDC 126 at [40]]. Accordingly, it may well warrant appellate consideration in an appropriate case. This is not that case. Here, the decision of the primary judge was an orthodox ruling striking out parts of a pleading that failed to articulate the elements of a reasonable cause of action coupled with an unassailable discretionary decision refusing leave to replead. To the extent that the primary judge had regard to the prospect of disproportion between the resources the claim would command and the interest at stake, her Honour did so permissibly. In my view, leave to appeal should be refused.”

33. (1906) 4 CLR 379; [1906] HCA 83; Robinson v Balmain New Ferry Co Ltd [1910] AC 295.

34. [2020] NSWCA 252 at [5] (McCallum JA; Basten JA and Leeming JA agreeing).

46. Grizonic was decided in the special context of the taking of accounts, and involved not mere disproportionality, but an accumulation of factors: [35]

“This is a case in which the complexity and cost — not only to the parties but to the court — of the litigation, the difficulties which beset it, the prima facie state of the accounts established by Mr Hogden’s affidavit, the apparent inutility of the proceedings, and the repeated failure of Mr Grizonic to pursue them in a manner which could facilitate their resolution, combine to make it one which ought not be permitted to proceed any further [cf Schellenberg v British Broadcasting Corporation [2000] EMLR 296; Wallis v Valentine [2002] EWCA Civ 1034 ; [2003] EMLR 8; Jameel v Dow Jones & Co Inc[2005] EWCA Civ 75 ; [2005] QB 946, [67]-[76]].”

35. Grizonic at [64] (Brereton J).

47. In any event, the point was not raised at first instance, was not one on which the primary judge relied, and without a Notice of Contention can provide no basis for upholding the primary’s finding of abuse of process.

Conclusion and disposition

48. For the foregoing reasons, the Statement of Claim neither fails to disclose a reasonable cause of action, nor has a tendency to cause prejudice, embarrassment, or delay in the proceedings, and is not otherwise an abuse of the process of the court. None of the grounds in UCPR, r 14.28, was established.

49. Although the order is an interlocutory one and does not necessarily preclude the plaintiff from recommencing proceedings, to do so in the face of an order dismissing the claim on the basis that it was an abuse of process would be, at the least, problematic. Leave to appeal should be granted. The appeal should be allowed, with costs; the orders made by the District Court on 10 December 2020 set aside; and in lieu thereof, the motion filed by the respondent (defendant) on 22 September 2020 should be dismissed, with costs.

50. Since writing the above I have had the benefit of reading in draft the judgment to be delivered by Wright J, with which I agree. I agree with the orders proposed by Wright J.

51. WRIGHT J: By a summons filed on 10 March 2021, the applicant, Mr Rock, seeks leave to appeal from an order made in the District Court on 10 December 2020 by Robison DCJ striking out his statement of claim filed on 10 August 2020. In that statement of claim, the applicant claimed damages for malicious prosecution and trespass to land allegedly committed by the respondent, Ms Henderson. The applicant requires leave to appeal because the District Court’s order was an interlocutory order: Supreme Court Act 1970 (NSW), s 101(2)(e) and Supreme Court Rules 1970 (NSW), Pt 60, r 17.

52. For the reasons which follow, in my view leave to appeal should be granted and the appeal should be allowed.

Background

53. The applicant and the respondent were married and have two children together. Their relationship has, however, become very acrimonious and they separated in 2017. Family law proceedings were originally commenced in the Federal Circuit Court of Australia and have since been transferred to the Family Court of Australia. The judge at first instance found that “undoubtedly the [family law] proceedings have been bitter and heavily contested”.

54. On 21 September 2018, there was an incident at Sydney Airport between the applicant and the respondent. This incident caused the respondent to attend Rose Bay Police Station on about 25 September 2018 where she made a written statement. Based on that statement, Constable Pitts sought and obtained a provisional apprehended domestic violence order (ADVO) against the applicant with the respondent as the person in need of protection. Under s 29 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a provisional ADVO is taken for the purposes of that Act to be an application for a final ADVO. On 14 June 2019, the application for a final ADVO was dismissed.

55. On 24 April 2020, the applicant’s solicitors wrote to the respondent’s solicitors alleging, inter alia, that the respondent had sold a property in Lilydale, Tasmania in late 2019 and had “in the vicinity of $265,000 by way of net proceeds of sale available to her since 2 December 2019”. It was also said in effect that, because she had those funds available, an application made by the respondent in the family law proceedings for the applicant to meet certain expenses incurred by the respondent should be withdrawn.

56. On 15 June 2020, the applicant’s solicitors sent a letter of demand to the respondent’s solicitors in which:

1. it was alleged that the respondent had committed the torts of malicious prosecution, based on the unsuccessful application for a final ADVO, and trespass, based on the respondent attending the applicant’s house; and

2. it was stated that the solicitors “assessed” the damages suffered by the applicant as a result of the malicious prosecution at $150,000 and those resulting from the trespass at $115,000, totalling $265,000.

The statement of claim

57. On 10 August 2020, the applicant’s solicitors filed a statement of claim claiming, in addition to interest and costs, unliquidated damages as follows:

1. for malicious prosecution: “a. Consequential economic loss. b. Aggravated damages. c. Exemplary damages”;

2. for trespass to land: “a. Vindicatory damages. b. Aggravated damages. c. Exemplary damages”.

58. The statement of claim relevantly pleaded the following allegations of material fact, excluding particulars:

“Malicious prosecution

Procuring proceedings

2 On 21 September 2018, the plaintiff [Mr Rock, the applicant] caused the defendant [Ms Henderson, the respondent] humiliation and embarrassment after he approached her and her sexual partner, Mr Steve Weston (Weston), at the Sydney Domestic Terminal.

…

3 On or about 25 September 2018, the defendant procured the institution of proceedings against the plaintiff under s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (Proceedings) in the Local Court of New South Wales at Waverley (Local Court).

…

Malice and lack of probable cause

4 The gravamen of the defendant’s complaint was a course of threatening conduct that had allegedly been carried out by the plaintiff between July 2017 and 21 September 2018.

…

5 In reality, the parties had regular, positive, and affectionate interactions from July 2017 until 21 September 2018.

…

6 In her Written Statement [upon which Const Pitt relied in seeking a provisional Apprehended Domestic Violence Order or ADVO], the defendant alleged that she was fearful of the plaintiff’s [sic] in circumstances where she harboured no such fears.

…

7 The defendant knowingly made false statements to Pitt when she procured proceedings against the plaintiff by virtue of the matters pleaded in the following paragraphs:

a. 4 and 5; and/or

b. 6.

8 By virtue of the matters pleaded in paragraph 8 [sic, should be 7] the defendant procured the proceedings without reasonable and probable cause.

9 By virtue of the matters pleaded in paragraphs 2, 3, and 7, the defendant procured proceedings against the plaintiff as a means of retribution for the embarrassment and humiliation he had caused her.

10 The defendant also believed that, by procuring the Proceedings, she would gain a forensic advantage with respect to the looming parenting proceedings between the parties.

…

11 By virtue of the matters pleaded in paragraph 9 – or, in the alternative, paragraph 10 – the defendant:

a. Procured the Proceedings for a purpose other than the proper invocation of the law; and

b. That was the sole, or dominant, purpose.

12 By virtue of the matters pleaded in paragraphs [sic] 8 [sic, should be 7?]– or, in the alternative, paragraph 11 – the defendant, in procuring the Proceedings, acted maliciously.

Termination of Proceedings in favour of the plaintiff

13 On 14 June 2019, the Proceedings were terminated in favour of the plaintiff when Pitt’s application for a final Apprehended Domestic Violence Order against the plaintiff was dismissed.

Damages

14 In defending the Proceedings, the plaintiff incurred legal costs amounting to $28,345.10.

…

15 In all, whilst defending the Proceedings, the plaintiff was required to attend – and attended – the Local Court on 8 occasions.

…

16 For the purposes of the Proceedings, the plaintiff spent an aggregate total of approximately 7 business days instructing his solicitor and counsel and reviewing subpoenaed documents.

17 Throughout the Proceedings, the plaintiff was self-employed and earning approximately $700 per day.

18 The plaintiff also suffered injury as a result of the circumstances and manner of the defendant’s wrongdoing.

…

19 By virtue of the matters pleaded in paragraphs 17 to 19, the plaintiff lost income in the amount of approximately $10,500.

20 By virtue of the matters pleaded in paragraphs 10 and 11, the defendant committed conscious wrongdoing in contumelious disregard of the plaintiff’s rights.

Trespass

21 At all material times, the plaintiff was the sole registered proprietor of the property known as [XXX], Paddington in the State of New South Wales (Property).

22 On 16 July 2019, the defendant entered the Property without the plaintiff’s consent and under circumstances in which she was prohibited from approaching the parties’ children pursuant to an Apprehended Domestic Violence Order.

…

23 The defendants entry onto the Property was an intentional act.

…

24 The defendant knew that her entry was against the wishes of the plaintiff and would likely cause him distress.

…

25 The children were severely distressed as a result of the defendants entering the Property.

… ”.

The strike out application

59. On 22 September 2020, the respondent filed a notice of motion effectively seeking that the statement of claim be struck under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

60. The strike out application was heard on 10 December 2020 and Robison DCJ delivered ex tempore reasons for judgment on that day and made orders as follows:

“1. Defendant’s notice of motion filed on 22 September 2020 is granted.

2. The Statement of Claim filed in these proceedings by the plaintiff on 10 August 2020 is struck out in full, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

3. The plaintiff pay the defendant’s costs of the notice of motion and the proceedings, as agreed or assessed.”

The reason for judgment at first instance

61. In his reasons for judgment, Robison DCJ reviewed the allegations in the statement of claim. His Honour then noted that the claim for vindicatory damages based on the alleged trespass to land had been abandoned by the applicant’s counsel.

62. The respective affidavits of the applicant and the respondent were referred to. Some findings were then made concerning the correspondence between the solicitors in April and June 2020, which has been referred to above. His Honour thought it “quite relevant”, “when it comes to any motivation or any ulterior motive that may be evident from the commencement of these proceedings”, that the letter of 15 June 2020 referred to amounts totalling $265,000 and the letter of 24 April 2020 referred “to the net proceeds of sale available to the defendant since 2 December 2019” in the same amount. The judge at first instance went on, however, to note that while in the letter of demand there was “some attempt at setting out the quantum of damages on a liquidated basis”, the statement of claim “is for damages effectively at large”.

63. His Honour then made some general observations concerning the nature of pleadings, the application of ss 56 and 58 of the Civil Procedure Act 2005 (NSW) and the material facts which must be pleaded to disclose a reasonable cause of action in malicious prosecution and trespass to land. The judge at first instance commented that there was a difficulty in that the pleadings in relation to trespass to land referred to the children and they were not parties to the proceedings. His Honour then summarised some of the submissions of the parties and noted that he was not aware of the issues in the family law proceedings.

64. Robison DCJ said that he agreed that ADVO proceedings were civil in nature but did not specify any consequence that might flow from this. His Honour then expressed the view that minds may well differ on whether the malicious prosecution action extended to a claim for loss of income and also noted that it was not necessary for him to turn his mind to the question of whether it extended to a claim for legal costs as that head of damage had been abandoned by the applicant’s counsel.

65. As to the trespass claim, it was noted that vindicatory damages had been abandoned, but allegations concerning distress to the plaintiff remained. This led his Honour to wonder how what was said about the children could “possibly be relevant in this particular instance”.

66. The judge at first instance’s reasons then continued as follows, at pp 14 and 15 of the reasons for judgment:

“I come back to my earlier observation about the components of the claim totalling $265,000 and the submissions in that context. Stepping back and looking at all of this, I have come to these conclusions.

Firstly, the statement of claim frankly would be very difficult for a defendant to properly plead to. It is a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly a personal nature. In respect of that I remind myself of Mr Davis’ submissions about that.

There are the Family Law proceedings; whatever may arising from that I simply do not know. The statement of claim overall is bad in form; it lacks compliance with the rules when it comes to the need to state the facts, not conclusions or evidence, but the facts upon which a party relies. The statement of claim is somewhat discursive and a little disjointed here and there; that is on any fair reading of the document as I have carefully done in this particular case.

I have also drawn an irresistible inference in all of this that when it comes to any ulterior motive or a collateral purpose, the irresistible inference I have drawn here is that these proceedings have been brought for an improper purpose, a collateral purpose, and I again refer to those components totalling the amount of $265,000. I agree entirely with the submissions made by Mr Davis to that end.

The continuation of these proceedings would be tantamount to allowing an abuse of process to continue. The Court needs to be on guard to ensure that its processes are not subject to abuse. In my further view, this is a very strong case which has been brought by the defendant in the relief sought in the notice of motion and frankly, having carefully reflected on the evidence, the application for relief is irresistible.”

67. The “submissions made by Mr Davis to that end”, with which Robison DCJ said he agreed entirely, apparently included the paragraphs of the respondent’s written submissions which were headed “Abuse of Process” and which were as follows:

“3. The relevant principles concerning abuse of process are contained in Williams v Spautz (1992) 174 CLR 509. It is noteworthy that the improper purpose which founds a finding of abuse of process need not be the sole purpose of a litigant. Further, proceedings may be an abuse of process, notwithstanding that a litigant appears to have a prima facie case.

4. The Defendant contends, for the reasons expressed in her supporting Affidavit, that the instant proceedings amount to an abuse of process, given their content and the parallel proceedings in the Family Law jurisdiction.”

68. The respondent (the defendant in the District Court proceedings) referred in pars 20 to 25 of “her supporting Affidavit” to the family law proceedings and the letter from the applicant’s solicitors to her solicitors in April 2020 concerning the Lilydale property and the June 2020 letter of demand and concluded at par 26:

“Therefore the total amount of damages claimed by Mr Rock was of $265,000 which is the total amount of the proceeds that I have received from the sale of the Lilydale Property and the amount that has been mentioned by [the applicant’s solicitors] in relation to the Lilydale property. It seems to me that Mr Rock is trying to circumvent the Family Law Proceedings by seeking to recover the exact amount of the proceeds I received from the Lilydale Property in these proceedings.”

69. Mr Davis’s oral submissions also included the following:

“That [the fact that the amounts of the proceeds of sale mentioned in the April 2020 letter was the same as the solicitors’ assessment of damages in the June 2020 letter of demand], in my submission, is the smoking gun in the sense of the true motivation behind the proceedings. What, in my submission, those letters demonstrate is that there is an identical or there is a correlation between the amount claim [sic] and the letter of demand issued prior to the commencement of these proceedings. The amount of these surplus sale proceeds of a property the subject of the Family Law proceedings, that, in my submission, would give the Court a degree of disquiet.” [36]

36. Tcpt, 10 December 2020, p 7 (18-24).

70. He also submitted that the references to the children in the statement of claim were relevant to the question of whether there was a collateral purpose because they involved “a substantial degree a reference to what I might loosely describe as relationship type matters”. [37]

    37. Tcpt, 10 December 2020, p 8 (28-31).

71. For those reasons, Robison DCJ then made the orders set out above striking out the statement of claim.

Grounds of appeal

72. The applicant formulated his grounds of appeal as follows:

“1. At page 15 of the transcript of his reasons, the primary judge erred in finding that the appellant’s actions for malicious prosecution and trespass were an abuse of process, in that:

1.1. His Honour found that the applicant had commenced the proceedings for an improper or collateral purpose in absence of evidence capable of supporting that finding; and

1.2. Further, or in the alternative, the purpose for which his Honour found that the applicant had commenced the proceedings was not an improper or collateral purpose as a matter of law.”

73. Since these grounds both concern the issue of whether the District Court proceedings involve an abuse of process, they can be conveniently dealt with together.

Grounds 1.1 and 1.2

Submissions

74. The applicant submitted, in relation to ground 1.1, that the judge at first instance was strikingly imprecise in the way that the improper or collateral purpose was identified with the only explicit identification being found in the phrase “I again refer to those components totalling the amount of $265,000”. Otherwise, it was contended that all that was said was that his Honour agreed with the submissions of counsel for the respondent but those submissions only cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Williams v Spautz) and relied on “the reasons expressed in [the respondent’s] supporting Affidavit”. Notwithstanding these difficulties, the applicant’s contention was that the primary judge accepted that the malicious prosecution and trespass proceedings were an abuse of process because they had been brought for the purpose of claiming, as damages, funds which were also in dispute in the family law proceedings.

75. The applicant submitted that there was no evidence that the proceeds of sale of the Lilydale property were in dispute in the family law proceedings. Nor, it was said, was there any evidence that the applicant had commenced the District Court proceedings in order to “circumvent” the family law proceedings or for any purpose other than having his grievances remedied by means of a damages award. It was submitted that it was significant that the applicant was not challenged in cross examination as to his purpose in commencing the District Court proceedings.

74. In all the circumstances, it was contended by the applicant that there was no evidence to support his Honour’s conclusion that the proceedings had been brought for a collateral or improper purpose.

75. As to ground 1.2, the applicant’s contention was that his purpose was to bring the District Court proceedings to a successful conclusion in his favour and the existence of an ulterior purpose, if one were found to exist in the present case, did not constitute an abuse of process, relying on Williams v Spautz at 526-7 and 535.

76. The respondent submitted that the evidence established that the family law proceedings included relief by way of property orders and thus there was evidence from which his Honour could conclude that if damages were awarded to the applicant in the District Court proceedings that would impact the scope of the matrimonial pool of assets, which would include the proceeds of sale of the Lilydale property.

77. In addition, it was also submitted on the respondent’s behalf that, while the evidence of the applicant’s purpose in commencing the proceedings was admissible, it was not conclusive. Further in this regard, the respondent contended that if the applicant had a mixed purpose in bringing the proceedings the test was as stated in Williams v Spautz at 537 (citing Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 503), namely: “but for his ulterior purpose, [the applicant] would not have commenced proceedings at all”.

78. Next, the respondent drew attention to the “curious correlation” between the amount of the proceeds of sale of the Lilydale property and the amount claimed in the letter of demand of June 2020. Finally, it was submitted that the amount claimed in the letter of demand was “perversely disproportionate to the likely result to be obtained” and the judge at first instance was entitled to take that disproportionate claim into account and to draw the inferences that:

1. the applicant “wished to seek to recover the proceeds of sale of the [Lilydale] Property” and “thereafter went about justifying that claim by devising a claim for damages in that amount”; and

2. “a claim for damages of that magnitude would inform or impact any negotiations with respect to resolution of the Family Court Proceedings and that was the true purpose of the Claim, which purpose would be collateral to the proceeding.”

Consideration

81. Under r 14.28(1)(c) of the UCPR, the Court may strike out the whole or any part of a pleading “if the pleading … is … an abuse of the process of the court”.

82. From the passage from the reasons for judgment quoted above, it can be seen that the judge at first instance based his decision, at least in part, on the conclusion that the proceedings were brought for an improper and collateral purpose and, accordingly, the continuation of the proceedings “would be tantamount to allowing an abuse of process to continue”. The applicant’s grounds of appeal seek to challenge this conclusion that the pleadings in the District Court proceedings involved an abuse of process.

83. The applicable principles in relation to abuse of process are generally well established. In the context of r 14.28, among others, although abuse of process is not restricted to “defined and closed categories”, the concept is not at large or, indeed, without meaning; it extends to proceedings that are instituted for an improper or collateral purpose: Ridgeway v The Queen (1995) 184 CLR 19 at 74-5; [1995] HCA 66; Victoria International Container Terminal Limited v Lunt [2021] HCA 11; 95 ALJR 363 at [14].

84. There will be an improper purpose for bringing the proceedings if the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers: Williams v Spautz at 526-7. It is sufficient if the improper purpose is the predominant but not the only purpose of the party concerned.

85. Where, however, the immediate purpose in prosecuting the proceedings is to bring about a result for which the law provides in the event that the proceedings terminate in the party's favour, the existence of an ultimate purpose outside the scope of the proceedings does not constitute an abuse of process: Williams v Spautz at 526; Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 (Attila Boros) at [23]. In Williams v Spautz, Brennan J expressed the principle in the following terms, at 537:

“There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy.”

86. The onus of satisfying the court that there is an abuse of process, however, lies on the party alleging it and the onus has been described as involving "a heavy threshold": Williams v Spautz at 529; Attila Boros at [25].

87. In the present case, the improper or collateral purpose was not clearly identified by the judge at first instance but it appeared to be that the applicant’s purpose was to circumvent, or derive some advantage in, the family law proceedings by bringing the District Court proceedings. The evidence for this was apparently accepted by the judge at first instance as including the “curious correspondence” between the amount of the proceeds of sale of the Lilydale property and the amount claimed in the letter of demand, as well as the reference to the children’s distress in the pleading relating to damages for trespass.

88. The correspondence between the amount of the proceeds of sale of the Lilydale property and the total amount said to be the solicitor’s assessment of damages for the claims in the letter of demand may not have been fortuitous. Nonetheless, there was no evidence of what was in the mind of the solicitor who “assessed” the damages in sums totalling $265,000 for the purposes of the letter of demand. The letter of demand is not, however, a document which has any role to play in the pleading or determination of the applicant’s District Court proceedings. Quite appropriately, the statement of claim did not include a claim for $265,000 or any other specific sum by way of damages. The amount of damages, if any, which the applicant might recover in the District Court proceedings has no logical connection with the amount of the proceeds of sale of the Lilydale property.

89. Further, in so far as the applicant might be successful in recovering damages in the District Court proceedings, that award of damages might constitute property in relation to which the Family Court could make an order altering the interests of the parties to the marriage, under s 79 of the Family Law Act 1975 (Cth).

90. There was, in addition, evidence from the applicant as to why he commenced the District Court proceedings, namely, that he was aggrieved by the respondent’s conduct, in bringing the ADVO proceedings which he claimed had no basis and in entering his house, which caused him trouble, distress and expense, and he sought an award of damages by way of remedy. This was not challenged in cross examination. Such a purpose can properly be described as bringing proceedings to obtain a result for which the law provides.

91. In these circumstances, there is no sufficient basis for inferring from the “curious correspondence” that the applicant commenced the District Court proceedings for some improper or collateral purpose of circumventing the family law proceedings or obtaining some improper advantage involving the proceeds of sale of the Lilydale property and any orders that might be made in the family law proceedings. In this latter regard, it can be noted that there was no evidence as to the precise nature of the relief sought in the family law proceedings or the issues likely to arise in those proceedings.

92. As to whether the references to the children in par 25 of the statement of claim as part of the pleading of the claim for damages for trespass indicate an ulterior purpose, those references are to be understood in their context. In par 24, it is alleged that the respondent knew that her entering the property was “against the wishes of the [applicant] and would cause him distress.” The particulars to that paragraph indicate in substance that: (a) the applicant’s distress was, at least in part, the result of the distress caused to his children by contact with the respondent; and (b) the respondent had been informed of this. Thus, the allegations concerning the children’s distress in par 25 (and the particulars provided) were part of the basis for the applicant’s claim for damages for the distress suffered by him, as a result of the respondent’s trespass involving contact with the children, and were also part of the basis for the claim for exemplary damages as a result of the contumelious disregard of his rights. Understood in this light, referring to the children and their distress in the pleadings does not suggest any impropriety of purpose on the part of the applicant. Nor does it support the conclusion that this aspect of the pleading was irrelevant or would cause any undue embarrassment or delay.

93. In short, the evidence before Robison DCJ did not rise sufficiently high to cross the high threshold of establishing that the District Court proceedings were instituted for an improper or collateral purpose. This is particularly so since the seriousness of such a conclusion required the matter to be established by more than “inexact proofs, indefinite testimony, or indirect inferences”, in accordance with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

94. For these reasons, in my view his Honour erred in finding that the applicant commenced the District Court proceedings for an improper purpose and that to allow them to continue would be an abuse of process.

95. Accordingly, I would uphold the appeal based on ground 1.1.

96. In these circumstances, it may not be strictly necessary to consider ground 1.2. Consequently, that ground can be dealt with briefly. The contention advanced under ground 1.2 was that the purpose for which his Honour found that the applicant had commenced the proceedings was not an improper or collateral purpose as a matter of law. As has already been noted, it was far from clear what the judge at first instance held the applicant’s improper or collateral purpose to be. If the applicant’s purpose in commencing the District Court proceedings was, as the respondent submitted, to recover an amount equal to the proceeds of sale of the Lilydale property or an amount of damages of such magnitude as to impact on any negotiations with respect to resolution of the family law proceedings, it does not follow that the District Court proceedings were instituted for an improper or collateral purpose. Such purposes depend on a judgment for damages being obtained in the District Court proceedings and funds being paid in satisfaction of that judgment.

97. Thus, those purposes could only be the applicant’s ultimate purposes, dependent upon the applicant’s immediate purpose of prosecuting the District Court proceedings to bring about a result for which the law provides, namely an award of damages and payment of the amount. In such a case, since the immediate purpose is not improper, the existence of ultimate purposes outside the scope of the proceedings does not constitute an abuse of process, as explained in Williams v Spautz at 526 and 537.

98. Accordingly, the appeal should also be upheld on the basis in ground 1.2.

99. For completeness, it can be observed that, in the respondent’s submissions in this Court, she sought to rely on the proposition, derived from the judgment of McCallum J (as her Honour then was) in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897 (Bleyer v Google Inc) at [62], that where the resources of the court and the parties that will have to be expended to determine a claim are out of all proportion to the interest at stake, such disproportionality can properly be regarded as a species of abuse of process. [38] As the respondent’s counsel acknowledged, in Massarani v Kriz [2020] NSWCA 252, McCallum JA observed, at [5], that the decision in Bleyer v Google Inc had met with some criticism and, where it had been considered by appellate courts or superior courts at first instance, the circumstances rendered it unnecessary for the court to express a view as to its correctness.

    38. This proposition echoes the comment of Gaudron J in her Honour’s dissenting judgment in Williams v Spautz at 555: “there is no basis for characterising a purpose as improper unless it involves a demand made without right or claim of right, or unless it entails some consequence which is unrelated to or is not proportionate with the right, interest or wrong asserted in the proceedings or by the process which is said to have been abused”. (underlining added)

100. This basis for submitting that the applicant’s District Court proceedings were an abuse of process was not argued before the judge at first instance. Consequently, Robison DCJ was not asked to, and did not make, any findings as to whether there was a disproportionality between the interests at stake and the resources to be expended in the present matter, and his Honour did not consider whether, if there was a disproportionality, it was sufficient to attract the operation of the principle in Bleyer v Google Inc.

101. Further, there does not appear to me to be any proper basis to conclude, at this stage of the proceedings in the District Court, that the interests at stake, including but not limited to the amount of damages which might be awarded to the applicant if he were successful, are out of proportion to the resources to be expended in determining the proceedings. Thus, Bleyer v Google Inc would have no application in the present case, even if that the principle should be accepted as correct.

102. In all the circumstances, this is not a suitable case in which to consider the correctness of Bleyer v Google Inc. Nonetheless, it is worthwhile emphasising, as McCallum J did in that case at [63], that the primary function of a court is to determine causes properly brought before it according to law and the merits of the case. Lack of proportionality between the interest at stake in proceedings and the expense of determining the proceedings is usually addressed practically by:

1. proceedings being determined in the most appropriate court, having regard to the provisions of, and relevant considerations under, Pt 9, Divs 1 and 2, of the Civil Procedure Act, which relate to transferring proceedings between higher and lower courts; and

2. the limitations on costs orders in cases where the amount of the judgment recovered is less than the amount specified in rr 42.34 and 42.35 of the UCPR, depending on whether the proceedings are in the Supreme Court or District Court.

Leave to appeal

103. Since the grounds of appeal relied upon by the applicant have merit and should be upheld, I accept that there is an injustice which goes beyond the merely arguable in this case. Leave to appeal should, therefore, be granted.

Additional matters and the appropriate orders

104. The applicant did not rely on any grounds of appeal which sought to challenge the conclusion by the judge at first instance that the statement of claim was defective in form. Similarly, the respondent did not indicate an intention to file a notice of contention raising issues whether proceedings for an ADVO were proceedings which could give rise to a cause of action for malicious prosecution or whether economic loss such as loss of earnings could be claimed in proceedings for malicious prosecution. Nonetheless, these issues were covered or touched upon in submissions. [39]

     39. See for example: Tcpt, 12 July 2021, p 3(15) to p 7(46); Respondent’s written submissions of 9 July 2021 pars 3.10-3.16.

105. As to the form of the statement of claim, the relevant conclusions in Robison DCJ’s reasons for judgment included:

“Firstly, the statement of claim frankly would be very difficult for defendant to properly plead to. It is a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly of a personal nature. In respect of that I remind myself of Mr Davis’ submissions about that.

… The statement of claim overall is bad in form; it lacks compliance with the rules when it comes to the need to state the facts, not conclusions or evidence, but the facts upon which a party relies. The statement of claim is somewhat discursive and a little disjointed here and there; that is on any fair reading of the document as I have carefully done in this particular case.”

106. These conclusions are relevant for the orders to be made disposing of the appeal. If these conclusions were accepted, they would be a basis for not setting aside the order striking out the statement of claim but merely granting the applicant leave to replead. If, however, the pleading of the causes of action in the statement of claim were adequate, it would be appropriate to set aside Robison DCJ’s orders and order that the respondent’s notice of motion filed on 22 September 2020 be dismissed with costs.

107. The allegations of material fact contained in the pleading have been set out in full above. Paragraphs 2 to 20 seek to plead a cause of action for malicious prosecution.

108. The elements of a cause of action for malicious prosecution were set out in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10; at [1] as follows:

“…For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.”

109. In addition, since malicious prosecution developed from the action on the case, actual damage is an essential element of the tort: State of New South Wales v Landini [2010] NSWCA 157 at [20]; Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 (Smith) at 557. In Smith, Jordan CJ noted that the types of damages that might be recovered in malicious prosecution proceedings were damage occasioned by injury to reputation, damage to the person and damage to his property by being put to the expense of defending himself. This can be understood as including consequential economic and property loss that is not too remote. [40]

     40. R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths) at 714-715.

110. Paragraph 3 alleges that the respondent procured the institution of ADVO proceedings against the plaintiff. It was conceded by counsel for the respondent that it was sufficiently arguable that such proceedings fell within the kind of proceedings to which the tort applies so that this would not be ground for striking out this part of the statement of claim for failing to disclose a reasonable cause of action. [41] In light of decisions such as Li v Deng (No. 2) [2012] NSWSC 1245, the concession that the point was arguable was appropriate.

     41. Tcpt, 12 July 2021, p 9 (39-49).

111. In pars 2 and 4 to 12, facts are alleged so as to plead that:

1. the respondent was so involved in the procuring the institution of the proceedings by the police officer, as a result of making false statements to the officer, that she would be liable as a defendant in a claim based on malicious prosecution;

1. the respondent acted without reasonable and probable cause in that she did not actually believe that the applicant had acted as she stated and that she did not hold the fear that she said she did;

2. the respondent acted maliciously in that the sole or dominant purpose of the defendant was a purpose other than the proper invocation of relief by way of ADVO under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

112. In pars 8 and 12, there appear to be minor errors as to the actual paragraph numbers intended to be referred to. It does not appear to me that these errors, by themselves, are such as to justify a conclusion that the statement of claim is defective and liable to be struck out.

113. Paragraph 13 contains an allegation that the proceedings were terminated in favour of the applicant in that the application for a final ADVO was dismissed.

114. Finally, in pars 14 to 20, there are allegation of facts supporting claims for damages for consequential economic loss, as well as aggravated and exemplary damages. While it was conceded at first instance that damages for the costs of defending the proceeding would not be available, it does not follow that economic loss by way of loss of earnings would not be recoverable. It was conceded by the respondent that such a claim would at least be arguable so that it could not be said that no reasonable cause of action was disclosed in this regard. [42]

     42. Tcpt, 12 July 2021, p 5 (28-32).

115. In my view, the statement of claim in pars 2 to 20 pleads material facts as to each of the elements of the tort of malicious prosecution. The allegations are sufficiently clear that the pleading discloses the basis of the applicant’s claim and the respondent is able to plead to it. Such minor defects as there are in the pleading are not such as to justify the statement of claim being struck out.

116. In relation to the pleading of the cause of action in trespass, the respondent accepted that all the requisite elements of a cause of action in trespass to land were pleaded in pars 21 to 23 of the statement of claim. [43]

     43. Tcpt, 12 July 2021, p 1 (28-32).

117. The criticism that the pleading in par 25 concerning the distress caused to the children was irrelevant to the applicant’s claim has been addressed above at [92]. In summary, the distress to the applicant referred to in par 24 was, at least in part, the result of distress caused to the children as pleaded in par 25 and contact after notification of the likely effect of such contact was relied on to establish the contumeliousness of the trespass. Consequently, the allegation in par 25 was relevant to the applicant’s claims for damages as a result of the trespass. Thus, par 25 is not liable to be struck out as having a tendency to cause prejudice, delay or embarrassment.

118. The pleading of the cause of action in trespass in pars 21 to 25 of the statement of claim was not defective so as to warrant being struck out.

119. In these circumstances, the appropriate approach is to set aside Robison DCJ’s orders and to order in lieu that the respondent’s notice of motion be dismissed with costs.

Costs

120. The applicant has been entirely successful. There does not appear to me to be any reason why in this case the costs of the application for leave to appeal and the appeal should not follow the event.

Orders

121. For these reasons, the Court should order as follows:

1. Grant the applicant leave to appeal.

2. Direct the appellant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.

3. Allow the appeal.

4. Set aside the orders made by the District Court on 10 December 2020 and, in lieu, order that the notice of motion filed on 22 September 2020 be dismissed with the applicant on that motion to pay the cost of the respondent to that motion.

5. The respondent is to pay the applicant/appellant’s costs of the application for leave to appeal and the appeal.

**********

Endnotes